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Supreme Court Agrees to Review D.C. Circuit’s Decision That Former NLRB Acting General Counsel Served in Violation of Federal Law
BlogManagement Memo

On June 20, 2016, the United States Supreme Court granted a request by the National Labor Relations Board (“NLRB” or the “Board”) to review a decision from the D.C. Circuit Court of Appeals, which found that the Board’s former Acting General Counsel Lafe Solomon served in violation of the Federal Vacancies Reform Act, 5 U.S.C. §§ 3345, et seq. (“FVRA”) when he remained in that position after President Barack Obama nominated him to permanently fill the General Counsel role.

In June 2010, President Obama named Solomon as Acting General Counsel for the Board. Then, just six months later, the President nominated Solomon to serve as General Counsel permanently. Solomon, whose nomination was later returned by the Senate, ultimately served as Acting General Counsel until November 2013. In NLRB v. SW General, Inc., the D.C. Circuit ruled that the FVRA prohibits one individual from simultaneously serving as both an acting officer and a nominee to permanently fill that same position. The Circuit concluded, therefore, that Solomon had become ineligible to continue serving as Acting General Counsel as of January 5, 2011 – the date on which the President nominated him as General Counsel. Accordingly, the Circuit found that Solomon lacked authority to issue an unfair labor practice complaint against SW General, Inc. (“Southwest”) in January 2013, and it vacated the Board’s subsequent decision that Southwest had, in fact, committed the unfair labor practices alleged in that complaint.

In its petition for certiorari, the Board argued that the D.C. Circuit’s decision conflicted with past interpretations of the FVRA “upon which every president since the statute’s enactment has relied,” and insisted that the FVRA’s prohibition against permanent nominees simultaneously serving as acting officers applies only to individuals who initially served as “first assistants” to the office in question. Because Solomon was never a “first assistant” to the General Counsel, the Board continued, the FVRA did not prohibit him from continuing to serve as Acting General Counsel during the pendency of his nomination to serve as General Counsel. The Board warned that the Circuit’s decision could significantly impede the President from temporarily filling open positions with the individuals whom he or she “deems most qualified to fill them permanently.” Moreover, given the upcoming presidential election, the Board urged the Supreme Court to grant review “to ensure that the new President will not face uncertainty . . . regarding the legal constraints that govern his or her selection of acting officers and nominees.”

As we noted in a prior post, when the D.C. Circuit issued its decision in SW General, it emphasized the limited immediate impact of its finding that Solomon lacked authority to issue ULP complaints after January 5, 2011. Indeed, the Circuit expressly stated that its decision was “not the Son of Noel Canning” – a reference to the Supreme Court’s decision in Noel Canning v. NLRB, which resulted in the retroactive invalidation of hundreds of Board decisions. Instead, the Circuit made clear that if an employer failed to timely object to the invalidity of the Acting General Counsel’s service, that issue would be waived.

Nonetheless, the Supreme Court’s decision in this matter is expected to have wide-reaching ramifications, particularly given that many agencies will likely see new incoming acting officers once the newly-elected President takes office in January. We will keep you updated with further developments in this case.